Silicon Valley Immigration Lawyer Blog

A "leaked" USCIS internal memo (shown below) shows the immigration agency brainstorming various immigration reforms that could be implemented even without Congress passing any form of comprehensive immigration reform. The draft memo, titled "Administrative Alternatives to Comprehensive Immigration Reform", is directed to USCIS Director Alexandra Mayorkas. The proposed reforms outlined in the memo would serve to "promote family unity, foster economic growth, achieve significant process improvements and reduce the threat of removal for certain individuals present in the United States without authorization." As Congress, and not the USCIS, make immigration laws, the USCIS proposes these changes by reviewing prior statutory interpretation, issuing new guidance, and by broadening the use of discretionary relief.

These proposed reforms include practical suggestions that should not be controversial, such as authorizing the automatic extension of EADs for up to 240 days after submitting a renewal application, as well as issuing EAD's for two years instead of one year. Also included are measures that are likely to be controversial, such as allowing Temporary Protected Status (TPS) applicants who entered without inspection to adjust status to permanent residence. TPS provides humanitarian relief for persons currently in the U.S., regardless of their immigration status, when events such as war or natural disasters in their home county make it dangerous for them to return home. In most instances, applicants for adjustment of status to permanent residence must have been inspected upon entry, and this would allow persons with TPS to adjust status even if they entered without inspection.

The proposed reforms also suggest a liberal use of "deferred action", and apply it to large groups of people. Deferred action is a form of prosecutorial discretion that allows people who are otherwise removable, to stay in the U.S. Persons granted deferred action can obtain employment authorization. The proposed reforms include allowing persons who might benefit from the proposed DREAM Act, be afforded "deferred action". While deferred action is often used on a case-by-case basis, it has been used for large groups of people in the past.

The USCIS responded to an inquiry about the memo, made by the American Immigration Lawyers Association, with the following:

"Internal draft memos do not and should not be equated with official action or policy of the Department. We will not comment on notional, pre-decisional memos. As a matter of good government, U.S. Citizenship and Immigration Services (USCIS) will discuss just about every issue that comes within the purview of the immigration system. We continue to maintain that comprehensive bipartisan legislation, coupled with smart, effective enforcement, is the only solution to our nation's immigration challenges.

Internal memoranda help us do the thinking that leads to important changes; some of them are adopted and others are rejected. Our goal is to implement policies wisely and well to strengthen all aspects of our mission. The choices we have made so far have strengthened both the enforcement and services sides of USCIS - nobody should mistake deliberation and exchange of ideas for final decisions. To be clear, DHS will not grant deferred action or humanitarian parole to the nation's entire illegal immigrant population."

Leaked CIR Memo (7!29!2010)

Good news for Silicon Valley artists, performers, athletes, and "superstars" in their respective fields, who rely on the "O" or "P" visa to enter the U.S. to perform at various events. "O" visas are for persons with extraordinary ability in the sciences, arts, education, business, or athletics, and "P" visas are for athletes and entertainers. Both of these visas are routinely used for performing artists. Last week, USCIS Director Mayorkas told a gathering of arts groups that regular processing for O and P visas should be accomplished within fourteen days. This is welcome news as USCIS processing delays can often result in artists and performers missing scheduled events. Although agents and event organizers need to plan to allow time for USCIS adjudications, various entertainment and artistic fields often finalize events and specific artists with relatively short notice.

Our Palo Alto immigration law firm welcomes this news, and is looking forward to seeing if the USCIS really does adjudicate regular O and P filings within fourteen days. Currently, this law office routinely files P cases via premium processing, which costs an extra $1000 but promises to adjudicate the case within fifteen days. This is out of necessity, as the first of scheduled events is often for thirty days after the petition is filed. However, if the USCIS will start adjudicating O and P cases within fourteen days, clients will be able to save the $1000 premium processing fee.

While this is welcome news, the timing for O and P visa applicants to actually obtain their visa at a U.S. Consulate abroad is an entirely different matter. The length of time to obtain an interview for an O or P visa can range from one or two days at several of the busiest U.S. Consulates, to thirty (Ho Chi Minh City) or thirty-five (Beijing) days. O and P petitioners need to plan for the actual visa processing in their home country, as well as for the time for the USCIS to adjudicate the petition.

Opponents to any comprehensive immigration reform often argue that illegal immigrants are taking jobs away from Americans. The United Farm Workers of America are putting that assumption to the test with their "Take Our Jobs" campaign. Any American who would like a job in agriculture can enter their contact information online, and the UFW will help place them. The online submission section, called "I want to be a farm worker", includes the following note:

"Job may include using hand tools such as knives, hoes, shovels, etc. Duties may include tilling the soil, transplanting, weeding, thinning, picking, cutting, sorting & packing of harvested produce. May set up & operate irrigation equip. Work is performed outside in all weather conditions (Summertime 90+ degree weather) & is physically demanding requiring workers to bend, stoop, lift & carry up to 50 lbs on a regular basis."

Last week the president of the UFW was a guest on Comedy Central's Colbert Report to discuss the work of farm workers, and the UFW's new campaign. He told Steven Colbert that in response to the campaign, a total of THREE American workers had starting working. Americans simply do not want many of the jobs that are currently filled by undocumented immigrants.

The UFW campaign highlights the reality that labor performed by undocumented immigrants is vital to our food industry, and also highlights the need for immigration reform. AgJobs, the Agricultural, Job Opportunities, Benefits, and Security Act sponsored by Senator Dianne Feinstein, and re-introduced in Congress last year, would provide some of the immigration reform needed in this area. AgJobs would provide temporary legal immigration status for experienced farm workers already in the U.S., who committed to continue in farm work for the next five years. These farm workers would need to pay a fine, and undergo background checks. Unless more than three Americans start turning to agricultural work, we need AgJobs.

As an immigration lawyer, I regularly advise green-card holders how long it will take to sponsor their spouse, their brother, or their child for a green card. The U.S. immigration law has several categories under which a U.S. citizen, or a U.S. permanent resident (green card holder), can sponsor a close relative. All but one of these categories (the category including the spouse, child, or parent of a U.S. citizen), is subject to annual numerical limitation. The annual limitation for worldwide family immigration in 2010 is 226,000. This numerical limitation is determined annually by the U.S. State Department, in accordance with U.S. immigration law.

Because more than 226,000 family-based visa applicants wish to immigrate annually, a queue is formed in each of the family-based categories. Applicants are assigned a "priority date" that serves as their place holder in the queue. The priority date is the date that a sponsoring family member submitted the immigrant visa petition. So if a permanent resident submitted a visa petition for their spouse on April 1, 2001, the priority date for the spouse is April 1, 2001. Applicants can then view where the queue currently is by reviewing the State Department's Visa Bulletin, published monthly.

As an example, an excerpt from the July 2010 Visa Bulletin is below. The family-based immigration chart is at the bottom of the first page, and continues onto the second page. Category "2A" is the category for spouses and children of permanent residents. Under the "All Chargeability Areas Except Those Listed" column, the current priority date for category 2A is July 1, 2008. This means that if a permanent resident submitted a petition for their spouse or child before July 1, 2008, the spouse and child could now apply to immigrate to the U.S. So for persons that fall within the category of 'spouse and/or child of permanent resident", the overall timing will be around two years. The rest of the family-based chart shows some queues going back into the 1990's, and even 1989 for one category. For persons in those categories, the amount of time it takes from when their sponsor submits an application until the benefiiary can actually apply for an immigrant visa, can be up to twenty years.

Excerpt July 2010 Visa Bulletin

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